Ida (Migration)

The Administrative Appeals Tribunal considered a matter concerning an Employer Nomination (Permanent) (Class EN) Visa, Subclass 186, Temporary Residence Transition stream, for a Marketing Specialist. The dispute involved the approval of the nomination for the visa applicant and the jurisdiction of the Tribunal concerning a second named applicant.

The primary legal issue before the Tribunal was whether the nomination for the visa applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nomination had been approved and not subsequently withdrawn, if the position remained available, and if the visa application was made within the prescribed timeframe after nomination approval. A further issue arose regarding the Tribunal's jurisdiction over the second named applicant, which depended on whether that applicant was physically present in the migration zone at the time the review application was lodged.

The Tribunal reasoned that the nomination application, initially refused, was subsequently approved by the Tribunal on review. This satisfied clause 186.223(2) of the Regulations. The Tribunal found that the first named applicant met this criterion. However, concerning the second named applicant, the Tribunal determined that, pursuant to section 347(3) of the Migration Act 1958, a review application for a decision to refuse a permanent visa can only be made by a non-citizen who was physically present in the migration zone when the review application was lodged. As the second named applicant was not in the migration zone at that time, the Tribunal concluded it lacked jurisdiction over that applicant's matter.

Consequently, the Tribunal remitted the visa applications of the first, third, and fourth named applicants for reconsideration by the Minister, with a direction that the first named applicant met the nomination approval criterion. The Tribunal also declared that it did not have jurisdiction in the matter of the second named applicant.